status mundiafter the state of the New Law, though by the grace of the
Holy Ghost that law may be kept more perfectly, he was adapting a
trinitarian scheme of history propounded most recently by Abbot
Joachim of Fiore, who died in 1202. But it was really as one of the ‘post-
glossators’ of Roman law that Aquinas wrote his lengthy treatise on law
in the Prima Secundaeof his summa of theology—as the first, indeed, of
the jurists who moved on from the glossing of the text of the Corpus
Juris Civilisto the writing of coherent books of their own. He would
have known Ulpian’s dictum in the Digest: Publicum Jus est, quod ad
statum rei Romanae spectat: that there had been ‘a state of Roman
affairs’ (=resas in respublica) enshrined in a law which governed public
ceremonies and the magistracy. He might have read Justinian’s consti-
tution Tanta, which promulgated the just completed Digestof Roman
law on 16 December 533 and proclaimed that God had ‘set the Imperial
dispensation at the head of human affairs’ precisely to cope with novel
contingencies. Human society was created and sustained by acts of law-
making. Aquinas goes to some pains to show that even the Eternal Law
of God has its source in legislation proceeding from His ‘reasonable
will’, even if a law existing from eternity cannot have been promulgated
in the normal way. Similarly, human laws proceed from the reason and
will of the subordinate governors who derive their plan of government
from the Supreme Governor, but have always to be adapting it to the
changing states of their particular societies.^28
His assertion that any rational individual is legislating, ‘being provi-
dent for himself and others’, when he applies the Natural Law to his
own particular circumstances, and his description of emergencies, e.g.
threats of military attack or the starvation of one’s family, when the
ruler or an individual may tax or steal on the principle that ‘necessity
knows no law’, show that Aquinas’s law-making is a practical exercise.
On those occasions that he quotes Justinian’s Digestdirectly, it is to
emphasize that only a manifest ‘common utility’ justifies changing
human laws. The force of law depends on its stability and rootedness in
the customs of the community.^29 But in the late twelfth and thirteenth
centuries kings were taking it upon themselves to guard and purge these
customs, and to mould the societies of their countries by positive legis-
lation. In the 1250s the kings of both France and England begin to talk
of the purpose of this law-making as to correct ‘the state of the realm’.^30
8 Introduction. State: Word and Concept
(^28) STI–II, q. 91 art. 2, conc., 104, art. 3 ad 2., q. 106, art. 4; for Joachim’s statussee
M. Reeves and B. Hirsch-Reich, The Figurae of Joachim of Fiore(Oxford: Clarendon Press,
1972), 10–11, 164–7; J.-M. Aubert, Le Droit romain dans l’oeuvre de Saint Thomas,
Bibliothèque Thomiste, 30 (Paris, 1955); Digest, Preface and 1.1.2.
(^29) STI–II, q. 97, art. 2, conc.
(^30) Les Établissements de Saint Louis, ed. P. Viollet, 4 vols. (Paris, 1881–6), ii. 1;
Ordonnances des Roys de France, i. 67, 76; Documents of the Baronial Movement of Reform